UMG claims “right to block or remove” YouTube videos it doesn’t own

Universal Music Group has admitted to taking down a promotional video by …

Universal Music Group has responded to Megaupload's request for a temporary restraining order barring the music giant from further interference with the distribution of its "Mega Song." UMG insists that it had a right to take down the video—not under the Digital Millennium Copyright Act, as Megaupload had assumed, but under a private contractual arrangement between UMG and YouTube.

UMG's filing raises more questions than it answers. Most obviously, the firm has not explained why it took down the video in the first place. But the filing also raises deeper questions about UMG's effort to essentially opt out of the DMCA takedown rules. UMG seems to believe it can take down videos even if it doesn't hold the copyright to them, and that when UMG takes a video down from YouTube, the owner of that video can't avail herself of even the weak protections against takedown abuse provided by the DMCA.

A different kind of takedown

As we discussed on Thursday, UMG casts Megaupload as a major villain in the war over illegal file-sharing. Last week, Megaupload sought to bolster its image by releasing a pop-star-studded promotional video. UMG's takedown request was an unexpected publicity coup. Megaupload took full advantage, suing UMG on Monday and asking the judge for an immediate restraining order to prevent UMG from further interfering with the video's distribution.

UMG's response, filed late on Thursday, focuses on the narrow question of whether Judge Claudia Wilken should grant such a restraining order. The recording giant makes two principle arguments in opposition.

First, UMG says such a restraining order is not authorized by the Digital Millennium Copyright Act. The DMCA's notice-and-takedown safe harbor includes a provision for monetary damages against copyright holders who abuse the takedown process, but it does not give the courts the power to block copyright holders from sending takedown requests.

But more importantly, Universal argues that its takedown is not governed by the DMCA in the first place. In a statement supporting Megaupload's complaint, CIO Kim Dotcom had stated "it is my understanding" that Universal had invoked the DMCA's notice-and-takedown provisions. But UMG says Dotcom got it wrong: the takedown was sent "pursuant to the UMG-YouTube agreement," which gives UMG "the right to block or remove user-posted videos through YouTube's CMS based on a number of contractually specified criteria."

In other words, when UMG removes a video using YouTube's CMS, that might be a takedown, but it's not a DMCA takedown. And that, UMG argues, means that the DMCA's rule against sending takedown requests for files you don't own doesn't apply.

"Not limited to copyright infringement"

UMG underscored the point by including a letter UMG lawyer Kelly Klaus sent to YouTube on Wednesday. In that letter, Klaus wrote:

Your letter could be read to suggest that UMG's rights to use the YouTube "Content Management System" with respect to certain user-posted videos are limited to instances in which UMG asserts a claim that a user-posted video contains material that infringes a UMG copyright. As you know, UMG's rights in this regard are not limited to copyright infringement, as set forth more completely in the March 31, 2009 Video License Agreement for UGC Video Service Providers, including without limitation Paragraphs 1(b) and 1(g) thereof.

This appears to be a reference to the agreement underlying the VEVO partnership between Google and UMG announced in April 2009. As far as we know, the agreement isn't public, so we can only speculate on what's in Paragraphs 1(b) and 1(g). But we plan to ask Google for a copy.

UMG's response also sheds some light on another mystery: why Monday's issue of Tech News Today was yanked from YouTube. When UMG removes a video via YouTube's CMS, a "reference file" is created that "in theory is supposed to identify other instances of postings of the same content." UMG speculates that this "reference file" system was responsible for the accidental removal from YouTube of a Tech News Today episode featuring the Megaupload video.

The recording industry is currently lobbying for passage of the Stop Online Piracy Act, which would create a DMCA-style takedown regime for advertising and credit card networks. Critics may question whether it's wise to give new takedown powers to copyright holders that demonstrate such a cavalier attitude toward the rights of others.

Update:YouTube provided Ars Technica with the following statement: "Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it."

This is a more specific response than the one YouTube gave to Techdirt earlier in the day. It appears to specifically rule out takedowns for reasons other than copyright or this "live performance" exception. That's good, but we'd feel more comfortable if the exact text of the agreement (and similar agreements YouTube might have with other partners) were made available to the public.

This is quite an interesting revelation, though such backdoor deals usually are. Either Google thought this would be a nice thing to have, or UMG specifically requested this power over YouTube. And what a handy power it is, the ability to take down any content you want.

In the current complaint, I guess the judge would have to toss MegaUpload's case on account of no DMCA violation, but I think the sharks will smell blood in the water on this one.

I wouldn't be surprised if they indeed did have such an agreement, though that would be terribly short-sighted from Google. Though it could also be that they've misinterpreted the agreement -- intentionally, possibly -- and will lose in court. It doesn't really matter to them either way, they've gotten what they wanted already.

A better question might be why google would give them the power to remove videos they do not hold the copyright over. My understanding is these videos represent original content that featured artists represented by UMG. It seems unlikely that their agreement allows them to remove any content they disagree with, but contracts are stupid tricky things so we will have to wait and see what google says.

And most Americans won't ever even know this has happened. I wish we could just drag these abusive and pompous pricks out into the streets in the middle of the night and execute them. The worst types of parasites these creatures are. Hiding behind a pretend person, the corporation. We have handed over so much power without anyone noticing. The contempt they have for the American people is obvious.

So basically UMG has created their own private "DMCA law" through this private contractural argreement, and specifically intends to use it to cirumvent the law by selectively exercising control over anything it doesn't like even if it has no legal rights to it?

If Judge Claudia doesn't do something about this, she's not worthy of the space her butt occupies behind the bench. This is basically an insult "Oh judge, we can control what we want, we have this contract, and the law can't do anything about it, so tough."

So does this mean that a bunch of movie pirates can get together, put together a private contract with some streaming service, then stream stolen movies and no one can do anything about it because they privately contracted ownership over anothers copyright materials?

this is an utterly insane argument. umg and google wouldn't even have such an agreement if it weren't for the dmca. it's hard to imagine any anti-piracy actions i've read about being possible without the dmca. so, any powers big content has or agreements they are able negotiate, in this respect, are essentially framed by the dmca.

it's like arguing that umg lawyers can see during the daytime because they carry flashlights.

There's really no way to describe this situation short of calling it ludicrous. This seems like the sort of thing where somehow UMG thought nobody would learn of this letter, free speech advocates will get riled up and start shouting about corporations being evil and trying to censor us, and then UMG will back pedal with some weak, "Oh, no you misunderstood our letter. We meant to send that somewhere else, and this whole thing's been a mistake, we did this all by accident and now we've told youtube to put the video back up. We're cool now, right guys?"

If such an agreement does exist, it's an absolutely terrible idea for a website like youtube. If there are more incidents like this in the future, it could become the death of youtube if it becomes common enough, and people will move to another platform where they don't have to worry about some corporate executives seeing their clip, not liking it and having it completely taken down for no good reason.

And my take on it:It basically says that UMG will mostly allow YouTube users to make videos that incorporate bits of UMG-owned music in exchange for payment (payment from YouTube I think) and, more or less, the ability to kick off any videos that UMG doesn't agree with.

So, unfortunately, MegaUpload will have to either:1) Move the video somewhere else2) Host it themselves ( IIRC they have a streaming service called megavideo )

And afterwards keep spreading awareness of this case, because, as you can see, YouTube usage is so wide spread that even without laws like SOPA / PIPA, videos can still be legally and indiscriminately removed by means of private contracts between ahem... "rightsholders" and YouTube.

Clarification: I say "rightsholders" with quotes because they get the right to take down anything that doesn't please them whether they own the rights or not.

Does anyone know if this jeopardizes Youtubes "Safe harbor" status? I admit that I don't know the exact legal definition of it, but was under the impression that one of the things about a safe harbor was that they don't try to moderate the content, they are merely "conduits" and, while they promise to respond to DMCA take-down notices, there is no moderation / approval process involved.But they (might) have contractually "sold" their policing abilities to UMG, a right that they gave up to count as a safe harbor?

I was just about to add some new legal music to my aging music library. Many of these artists had VEVO videos. Guess I know exactly what I won't be buying and which artists I'll try to inform why I won't be buying their music.

In all seriousness though I'll bet they just pissed off the agent of every artist they have: they just devalued the image rights of all their artists with one stroke, effectively saying "It's not in YOUR contract but we own your face!"

If such an agreement does exist, it's an absolutely terrible idea for a website like Youtube. If there are more incidents like this in the future, it could become the death of Youtube if it becomes common enough, and people will move to another platform where they don't have to worry about some corporate executives seeing their clip, not liking it and having it completely taken down for no good reason.

Who says that wasn't the plan in the first place? Everyone's afraid of letting another iTunes form so abusive contracts that try to punish growth are apparently now the norm. Just look at Netflix.

Totally crazy... this is why the law (all of it!) needs to be scraped and streamlined, with the requirements being that it must be written in plain English and no longer then 50,000 words for the entire legal code.

Whenever large amounts of power pool up in the hands of a few (be they government, business, or whoever else), they start to think that they are god's greatest gift to the unwashed masses and bad things start to happen. We need recurrent periods of forced power decentralisation, it seems.

As far as I understand, this has nothing to do with the DMCA or any legal codes outside of a contract between Universal and Youtube.

I suppose this was coming; once the internet media companies like Youtube were large enough to have influence, they'll partner up with existing content producers (like Universal). In exchange for not being hassled constantly by takedowns and to have content legally on their site (from Universal), they give away the use to block any video UMG sees fit.

I'm not sure what to think of it. It's not morally wrong. Nobody's rights are infringed really. Megaupload is using a service (Youtube) and the service partnership (Youtube+UMG) didn't like the video, so they deleted it.

Who says that wasn't the plan in the first place? Everyone's afraid of letting another iTunes form so abusive contracts that try to punish growth are apparently now the norm. Just look at Netflix.

It doesn't seem like a very feasable plan though. UMG would have to get other large companies on board, with similar contracts, because if it was just UMG doing this over and over again, I imagine they would be taken to court over it by Google on some grounds. I don't think it would be too much of a stretch for Google to say that UMG acted in bad faith and breached whatever contracts they had if UMG acted alone, and took advantage of this clause in a way that was deliberately designed to damage Google's business in Youtube. I'm not a lawyer, so perhaps there's some sort of obvious reason that wouldn't fly that I'm missing, but it would seem like a pretty poor strategy to me. One large company acting along, I could see Google telling them to get lost.

I'm not sure what to think of it. It's not morally wrong. Nobody's rights are infringed really. Megaupload is using a service (Youtube) and the service partnership (Youtube+UMG) didn't like the video, so they deleted it.

Doesn't sit well though.

This in much the same way as Amazon telling Wikileaks to get off their servers, even tho everything was payed for and such. Either case is a reminder that bullying works, no matter how much we try to tell ourselves that civilized man is above that sort of thing.

I think we all know what needs to be done. Pass SOPA, protect the lawyers! Half of my friends have gone off to law school. If we keep this crap up, and even add a significant catalyst, SOPA, we can solve the unemployment problem. Jobless? LSAT it up and hit the books for three years. You'll be able to slow down corporations and growth for decades to come.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.